2023 RLLR 236
Citation: 2023 RLLR 236
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Arthur Yallen
Country: Ukraine
RPD Number: VC3-09414
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of XXXX XXXX (the “claimant”), as a citizen of Ukraine, who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] The initial application for protection was made by both the claimant and her husband, XXXX XXXX (VC3-09415). However, XXXX passed away on XXXX XXXX, 2023. A copy of his death certificate is in Exhibit 5. Therefore, these reasons address only the claimant’s claim for protection.
ALLEGATIONS
[3] The following is a brief synopsis of the allegations put forth by the claimant in her Basis of Claim (BOC) form.[2]
[4] She fears persecution at the hands of Russian forces due to the current war.
[5] The claimant is a 68-year-old female from eastern Ukraine, who speaks both Russian and Ukrainian languages. Following the commencement of the Russian offensive, the claimant and her husband relocated to the western part of the country. However, the claimant’s husband was physically assaulted by his neighbours following an argument over the war and political issues surrounding it. Fearing such treatment at the hands of society and the war, the claimant and her husband travelled to Canada on May 19, 2022, where they filed for refugee protection.
DETERMINATION
[6] I find that the claimant is a Convention refugee as she has established a serious possibility of persecution for the following reasons.
ANALYSIS
Identity
[7] I find that the claimant’s identity as a national of Ukraine is established, on a balance of probabilities, based on a certified copy of her Ukrainian passport on file.[3]
Nexus
[8] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion. The persecution that the claimant fears in this case is due to Russia’s war against Ukraine. I find that she has established nexus to the Convention ground of nationality. Therefore, her claim is being assessed under section 96 of the IRPA and not under section 97.
Credibility
[9] The Board presumes claimants are telling the truth unless there is a valid reason to doubt it. However, this presumption does not apply to inferences and speculations. In this case, the claimant testified in a straightforward and spontaneous manner. Based on her testimony, I find her to be a credible witness and accept her allegations to be true on a balance of probabilities, including her subjective fear of returning to Ukraine.
Well-Founded Fear of Persecution and Risk of Harm
[10] To establish her status as a Convention refugee, the claimant had to show that there was a serious possibility that she would be persecuted if removed to Ukraine.
[11] I find that the objective evidence supports her subjective fears and establishes a serious possibility of persecution for the claimant if she is forced to return to her country. My reasons are as follows.
[12] Objective evidence shows that the conflict in Ukraine is not a civil war; instead, it is a large-scale military invasion of a sovereign state by a foreign country in violation of international law.
Since the beginning of Russia’s full-scale invasion of Ukraine, ACLED records nearly 40,000 political violence events across the country. Three-quarters of these events are shelling, artillery, and missile strikes mostly affecting the northeastern, eastern, and southern regions of Ukraine. Quantifying the civilian toll of the conflict presents a challenge – especially in areas continuously engulfed by violence, like eastern Ukraine. In areas under Russian occupation, reports of abductions, forced disappearances, torture, and extrajudicial executions have been widespread, though the scale of violence against civilians becomes known only upon the liberation of territories, evidenced in the case of northern Ukraine and especially the Kyiv suburbs. Meanwhile, long-range strikes, including those deliberately targeting civilian infrastructure, pose a permanent threat and continue to induce extreme hardship for communities even farther afield from the frontline.[4]
[13] A report by Human Rights Watch states that:
Russia’s full-scale invasion of Ukraine starting on February 24, 2022, has left a terrible path of destruction in its wake. This has brought unimaginable personal suffering, as Russia seeks to erase Ukraine’s sovereignty and to crush Ukrainians’ resilience. Russia has committed countless war crimes including extrajudicial killings, torture, sexual violence, and indiscriminate bombings of civilians, schools, hospitals, and residential areas. It has also repeatedly attacked energy infrastructure making civilian lives precarious and insecure. The impact reaches beyond Ukraine’s borders. More than 14 million Ukrainians have been forced to flee their homes, over half of them leaving the country, with 5 million coming to Europe.[5]
[14] The objective evidence above indicates that the Russian state and its military agents in Ukraine are targeting Ukrainians as they do not recognize Ukraine as a distinct nation or anyone identifying themselves as Ukrainian.
[15] Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution at the hands of Russian forces due to her nationality, if forced to return to Ukraine.
[16] I find that her fears are indeed well-founded.
State Protection
[17] The claimant will be unable to access adequate state protection in Ukraine as the country is being attacked through not only land but aerially as well.
[18] As discussed above, Russia has waged a full-scale war in Ukraine, leaving millions displaced and thousands dead, an action which continues unabated. Therefore, I find that the presumption of state protection has been rebutted in this case as Ukraine’s security resources are being utilized in the war, thereby leaving the nation unable to protect its citizens adequately.
Internal Flight Alternative (IFA)
[19] The final issue before me is that of an IFA in Ukraine where the claimant can live safely.
[20] In its March 2022 Position on Returns to Ukraine, the UNHCR notes that the situation is volatile “in the entire territory of Ukraine” and that it “does not consider it appropriate to deny international protection to Ukrainians and former habitual residents of Ukraine on the basis of an internal flight or relocation alternative.”[6] Therefore, I find, on a balance of probabilities, that the claimant does not have a viable IFA in Ukraine.
CONCLUSION
[21] Based on the analysis above, I conclude that the claimant is a Convention refugee under section 96 of IRPA. Accordingly, I accept her claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibit 2.
[3] Exhibit 1.
[4] Exhibit 3, National Documentation Package, Ukraine, 30 June 2023, tab 1.6: War in Ukraine. One Year On, Nowhere Safe. Armed Conflict Location & Event Data Project. Nichita Gurcov. 1 March 2023.
[5] Exhibit 3, National Documentation Package, Ukraine, 30 June 2023, tab 2.9: Ukraine: Human Cost of Brutal Russian Invasion. Human Rights Watch. Hugh Williamson. 24 February 2023.
[6] Exhibit 3, National Documentation Package, Ukraine, 30 June 2023, tab 1.23: UNHCR Position on Returns to Ukraine. Office of the High Commissioner for Human Rights. March 2022.